R v Glover [2002] NSWCCA 376 | Case summary

Wednesday, 11 SEPTEMBER 2002 R v Robert William GLOVER Judgment 1 IPP AJA: I agree. 2 STUDDERT J: I agree with Dunford J. 3 DUNFORD J: This is an appeal by Robert William Glover against his conviction in the District Court at Coffs Harbour on 20 June 2001 on two counts of maliciously damage property by means of explosives contrary to s 195(b) of the Crimes Act 1900, which offence carries a maximum penalty of 10 years imprisonment. The appellant also seeks leave to appeal against the concurrent sentences of imprisonment for 8 years with a non-parole period of 6 years imposed following such convictions. 4 At about 1am on 3 August 1996 there was a large explosion at 1 Duke Street, Coffs Harbour which caused substantial damage to the building at that site, which was owned by Harbans Singh Hayer and others, and to the contents of one of the offices within the building, which was occupied by the New South Wales Department of Community Services (DOCS); hence the two charges, one relating to the building and one relating to the office of DOCS. DOCS suffered the majority of the damage caused by the explosion as the explosive device was placed on the footpath immediately outside its offices. 5 There was evidence that for some time prior to that date the appellant, who had become the sole carer for the children of his marriage following his wife's death from cancer, was having difficulty with a number of his children, particularly his young son, Timothy, then aged about 10 who it was said suffered from Attention Deficit Hyperactivity Disorder, was engaged in antisocial behaviour, frequently absenting himself from the family home overnight and at times for several days at a time. 6 There was evidence that the appellant sought assistance from DOCS who referred him to the police, and when he approached the police they indicated that it was rather a matter for DOCS. There was evidence from Constable Simpson a member of the Police Bomb Disposal Unit who found debris which included red detonating cord ("Redcord"), and wrapping from a Power Gel Magnum 365 explosive cartridge, and a search of the appellant's premises disclosed explosives and other related items along with documentation regarding the appellant's expertise with explosives. There was also evidence that between November 1994 and 18 March 1996 the appellant purchased over 200 sticks of Power Gel along with Redcord and other associated products, although only about 17 sticks of this was Power Gel Magnum 365. The appellant had a special open permit to purchase explosives, and had done a TAFE course on the use of explosives, including the use of Power Gel. 7 Officers from DOCS gave evidence that from about late 1995 the appellant was having problems in relation to the care of his son, Timothy, but the Department's attitude was that Timothy did not suffer from social problems, but rather from a medical condition being Attention Deficit Hyperactive Disorder, about which DOCS could not assist. 8 On 2 August the appellant rang Mr Tomkinson, one of the officers, about his son being missing, and he was agitated and tense. During a second phone call that day the appellant became angry and irrational when Mr Tomkinson told him to call the police. On the same day he telephoned an electoral officer for the local member of Parliament, whose office was located in the same building, and during the conversation he angrily blamed DOCS for his family problems, particularly with his son and older daughter. 9 That same day Anthony White, the Manager of the Burnside Family Centre, received a call from the appellant who was angry and upset about his missing son and the fact that DOCS would not do anything about it. The appellant said, "Do I have to do what that bloke did at Port Arthur before anyone will take any notice?" In early to mid June 1996 he made a similar remark to Sergeant Ian Hodges when he attended Coffs Harbour Police Station to report his son missing. 10 There was expert evidence as to how the explosive device using Power Gel Magnum and Redcord could be detonated and the amount of explosives needed to cause an explosion such as the subject one. 11 A duly authorised listening device recorded the appellant saying that he was away from home at the time of his explosion, and a neighbour (Ms Carol Ginn) gave evidence that she heard a car drive out of the appellant's driveway shortly before she heard an explosion and return shortly afterwards. Also on 7 August she had a conversation with the appellant where he indicated that he was not at home at the time of the explosion because he was out looking for his son. 12 His daughter, Melanie Glover said that she came home on the night of 2/3 August 1996 at about midnight, hers was the only car at the house, she went to sleep and did not awake until morning when she noticed her car was parked in a different location to the previous night 13 There was also evidence that the accused had approached two federal agents and offered to act as an informer but said he wanted immunity from the explosion at the DOCS' office. 14 The appellant did not give evidence, but in a recorded interview he denied any involvement in the offence and later he told his neighbour that he had gone out looking for his son on the night of 2 August 1996 but returned by 11pm and had not gone out again. 15 Although he did not give evidence, the appellant called a number of witnesses, including another daughter who said that on the night of 2 August she was in her bedroom where she could hear cars come and go, but did not hear a car leave after Melanie came home. She also said that in the morning before Melanie awoke the appellant used Melanie's car to get bread, and that Timothy was at home all that evening. 16 The appellant also called an explosives consultant who expressed opinions somewhat at variance with the Crown experts as to the amount of Power Gel and Redcord needed to cause the explosion. 17 In cross-examination, the police and DOCS' employees gave evidence of a large number of other people who were investigated by police, including some who had threatened to blow up DOCS' or harm employees or had access to Power Gel Magnum 365. 18 A number of grounds of appeal were relied on. 19 Ground 1 (as amended at the hearing): The trial judge erred in his directions regarding circumstantial evidence in that he did not direct that the jury need be satisfied beyond reasonable doubt of evidence, to the effect that the appellant: (a) had the capacity or expertise to commit the alleged offences, (b) had the opportunity to commit the alleged offences, (c) had lied, (d) that it was Power Gel 365 that was the explosive used. 20 In his Summing-Up his Honour said (SU 17) that the Crown set out to prove a number of circumstances, that is facts and events which the Crown said, when taken together, proved beyond reasonable doubt that the accused was guilty because there was no other reasonable explanation. He then gave the usual direction as follows:- "However, before you can find an accused person guilty of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make. It follows, that if there is some other finding which is reasonably open, that is there is another reasonable explanation which is consistent with his innocence, then it is your duty to acquit him, to find him not guilty. Of course when you consider circumstantial evidence you do so in light of all the material in the case including, of course, material placed before you by the accused. … It seems to me that there are four circumstances, basically, upon which the Crown relies, plus the element of lies, which I will deal with separately. One of those circumstances, I believe, requires that you be satisfied beyond reasonable doubt of its existence, because it is a link, an indispensable link, in the chain of reasoning which the Crown presents to you. The other circumstances, are, or could be, likened to strands in a rope - the more strands there are, and the thicker the individual strands are, then, consequently, the thicker and stronger is the rope. You need to be in a situation, as the Crown described, where you look at the whole picture, look at everything together - you do not look at the circumstances in isolation and say "Well that circumstance by itself wouldn't prove his guilt", you look at the whole picture and each of the circumstances can gain strength from their association with the others in the picture. Except, as I say, for one, which seems to me to be an indispensable link." 21 He then identified the circumstances relied on, one of which he divided into two parts so that, including the lies, there were in effect six circumstances identified for the jury, namely (1) that the appellant had a grudge against DOCS; (2) that he had the personal capacity, that is sufficient expertise to produce the explosion; (3) that he had access to the type of explosives which were used in the device and in sufficient quantity to produce the result; (4) that he had the opportunity, that he was able to go there and set off the explosion; (5) the exclusion of other possible suspects; and (6) that the appellant lied to police about whether he left home on the night in question. 22 His Honour said that item number 3 (access to sufficient explosives of the type involved) was an essential immediate step which had to be proved beyond reasonable doubt, but the effect of his Summing-Up was that the other matters did not need to be proved beyond reasonable doubt provided that the cumulative effect was such as to exclude any conclusion other than that the accused was guilty. 23 The appellant relied on what was said by Dawson J in Shepherd v The Queen (1991) 170 CLR 573 at 579 where his Honour, after dealing with the nature of circumstantial evidence and saying that it is not the law that an inference of guilt from such evidence can properly be drawn only from facts which have been proved beyond reasonable doubt, went on to say:- "On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 24 In the present case, the ability or capacity of the appellant to make the explosive device does not appear to have seriously been in issue. As his Honour told the Jury (SU 28-9): "The other part of the circumstance of his capacity, namely that he had the requisite level of expertise, is not, I think in serious dispute. You know that he was licensed in a number of ways to manufacture, to explode, to transport explosives and so on, and he had the requisite tickets as a result of having completed the TAFE course, the TAFE course which was taught by Mr Green, whoever it was, the gentleman that wanted to reassure us that he was not there and had not done it - you will remember him, he described the accused as being a student who achieved 97.4% and he was the one who produced copies of the documents that the accused would have had access to in the course of that learning dealing with Redcord and PowerGel and so on. And the accused in his record of interview, and indeed in the discussions that you hear on the listening device tapes, makes no secret of the fact that he had an interest in explosives, and an interest in devising ways of using them, of improvising and so on." 25 Of course the capacity of any accused person to commit a crime may be a self-evident fact. As Dawson J pointed out in Shepherd at 581 it may often be unnecessary to identify an intermediate fact if it is obvious to the jury. I would regard the technical capacity of the appellant to set up the explosion as such an obvious fact that it did not require identification as an intermediate fact requiring proof beyond reasonable doubt. 26 Similarly with the appellant's opportunity to commit the offence. It would be obvious to any juror, as to any other mentally competent member of the community, that a person cannot commit an offence unless that person has the opportunity to do so and, like the capacity of the accused to commit the offence, opportunity is not (at least in the circumstances of this case) a circumstance which required a direction that it needed to be proved beyond reasonable doubt. 27 It was the combination of a number of circumstances each proved on the balance of probabilities on which the Crown relied to establish beyond reasonable doubt the ultimate fact, namely, that it was the appellant who in fact set the explosion. Circumstances such as capacity and opportunity each taken alone may in a particular case, such as the present, only be proved on the balance of probabilities, but when taken together with a number of other circumstances similarly proved, may establish the guilt of an accused beyond reasonable doubt; see the example given by McHugh J in Shepherd at 592. 28 In the appellant's written submissions reference was made to the fact that the Crown set out to prove that the appellant was absent from his home at the time of the explosion and went on, "If it is not proven beyond reasonable doubt it places the appellant at home at the relevant time and plainly innocent". This does not follow. Evidence that he probably was absent from home does not establish that he was at home (it tends to establish the exact opposite). 29 There was in fact substantial evidence to the effect that the appellant was absent from his home at the relevant time. A neighbour (Carol Ginn) gave evidence of hearing a car leave the appellant's premises about a quarter of an hour before, and return about a quarter of an hour after, the explosion on 7 August 1996. The appellant told her that he was not at home at the time of the explosion "because he was out looking for his son" and one of his daughters, Melanie, said she returned home in her car at about midnight and went to sleep, but the following morning found her car parked in a different location. 30 The direction given by his Honour in relation to the telling of lies was in accordance with the majority judgment of the High Court in Edwards v The Queen (1993) 178 CLR 193 at 209-11, but it was submitted that as the alleged lie related to the opportunity to commit the offence it needed to be proved beyond reasonable doubt. However, as already pointed out, whether he had the opportunity to commit the offence is a matter which the jury would have regarded as essential in any event and whether he lied about it, whilst a relevant circumstance, was not an essential intermediate step. 31 By an amendment to the grounds of appeal made orally at the hearing of the appeal it was further submitted that another "intermediate fact" which required proof beyond reasonable doubt was that it was Power Gel 365 that was the explosive used. 32 This proposition (that Power Gel 365 was the explosive used) was inextricably bound up with the proposition which his Honour directed the Jury did require proof beyond reasonable doubt, namely that he had access to the right sort of explosive and in sufficient quantity, and in my view is indistinguishable from it. In this regard, his Honour directed the Jury as follows (at SU 20):- "The Crown suggested to you that you would be satisfied beyond reasonable doubt that this damage at the Department of Community Services building was the result of an explosion of two different types of explosive, they being Powergel Magnum 365 and Redcord, and it may be that you are already persuaded beyond reasonable doubt that those were the two elements which went to make up this device. There has certainly been a lot of evidence, and I do not understand any of that evidence to have really sought to controvert the proposition, that that is what was involved." 33 In the present case it was the cumulative effect of the appellant's motive, his ability or capacity to make the explosive device, access by him to sufficient explosives of the kind used to make the device, the opportunity to be at the scene and the exclusion of other possible suspects, together with the lies, on which the Crown relied. In my view, none of these circumstances, not even the access to sufficient explosives, needed to be proved beyond reasonable doubt; it was the inference of guilt arising from the combination and totality of the circumstances which needed to be proved beyond reasonable doubt and none of them individually constituted an essential intermediate step within the terms of Shepherd. 34 Ground 2 The trial judge erred in admitting evidence to the effect that the appellant had sought immunity from prosecution in respect of the alleged offences in conversation with Federal Police on 19 July 1999. 35 The appellant approached federal police officers on 19 July 1999 and offered information relating to criminal activity in Coffs Harbour in the role of police informer. The officers to whom he spoke, agents Johnson and Meehan, gave evidence that in the course of that conversation he said, "All I'm asking from you is immunity from prosecution basically …", and later, "now for you to get credibility from your boss … I want immunity from the explosion at the DOCS office …". The appellant had previously acted in the role of police informer with state police in 1998. 36 It was submitted that the evidence should not have been admitted for three reasons: 1) its probative value was low given in the context of trying to boost the appellant's credibility with police officers in the role of an informer, whereas its prejudicial value was high given that the prosecution relied on it as the only confession of guilt by the appellant amidst his consistent denials otherwise; and accordingly it should have been excluded pursuant to ss 135 and 137 of the Evidence Act 1995 , (2) at common law the statements of informers have always been treated with caution and may be "unreliable evidence", and reference was made to s 165 of the Evidence Act , and as an informer is likely to have a hidden agenda prompting the giving of information to authorities, the probative value of any statement made by an informer is reduced, and accordingly ss 135 and 137 were again relevant, and (3) the appellant's statements to police in his role of informer were entitled to be treated in confidence, akin to public interest immunity, and reference was made to The Attorney General of NSW v Stewart (1994) 34 NSWLR 667 at 674-6. 37 In my view none of these submissions are valid. The statements made to the police were capable of being regarded by the jury as admissions by him that he was responsible for, or involved in, the explosion at the DOCS office. He may have denied his involvement at other times, but this is irrelevant, because not only did he make what could be regarded as an admission, but he was offering to give information to the federal police in exchange for immunity from prosecution, a clear acknowledgment, I would have thought, that he had something to fear from a prosecution. He was not trapped or led into the alleged admission: he approached the federal police and he volunteered the request for immunity in exchange for the giving of information. In my opinion this request for immunity was highly probative, it certainly was prejudicial to the appellant, but such prejudice was not unfair to him, and accordingly ss 135 and 137 had no application. 38 It is true that evidence by informers has often been regarded as unreliable, and the evidence which he was offering to give, and apparently did give, to the police officers about the criminal activities of others may have been unreliable; but that did not affect the reliability of any alleged admission made by him concerning his own involvement in criminal activity, and once again ss 135 and 137 are of no application. 39 The law regards the evidence of informers as possibly unreliable because of its experience over time that they may falsely inform on others in the expectation of receiving some benefit for themselves; but here the appellant was not informing on some third party, but on himself, so the law's experience of the unreliability of information provided by informers relating to the activity of others was not relevant. 40 The public interest immunity referred to in Attorney General of NSW v Stewart relates to the identity of an informer providing information about the criminal activities of others; its rationale is that if the identity of the informer were liable to be disclosed, sources of information would dry up and the police would be hindered in their duty of preventing and detecting criminal activity, ongoing enquiries may be jeopardised and the informer may be at risk of danger from the criminals informed on. None of these considerations applied here, and consequently there was no public interest in protecting the appellant's identity in respect of an alleged admission relating to his own criminal activities. 41 Ground 3 The trial miscarried by reason of the introduction into evidence of the evidence by David Andrew Johnston (and related evidence) to the effect that during 1998 the appellant had provided information to (State) police which was "malicious in regard to certain persons" . 42 Evidence was led by the Crown from David Andrew Johnston, a New South Wales police officer, to the effect that the appellant was a registered informer for the State police in 1998 and was discharged from that registration in July of that year, in effect after giving unreliable information. In particular Detective Johnston said that some of the information, upon research, was malicious in regard to certain persons and that the appellant was only supplying the police with half-truths. Defence counsel did not object to this evidence but cross-examined on it, including asking the question at T 690: "Now if he were such a dud, why did you pass him on to the Federal Police on 1 July 1998?" 43 Johnston's answer was to the effect that he was not passed on but was introduced to Federal Police because he wished to give information relating to hash (sic), a subject with which federal agent Johnson had more knowledge and expertise. It was submitted that the evidence was not relevant, that it was unreliable and of poor quality, that it was tendency evidence which did not comply with the requirements of the Evidence Act in relation to such evidence and that it improperly raised the issue of character. 44 In fact the issue of the appellant being a police informant had first been raised by the defence, early in the trial, in cross-examination of Senior Constable Bell. This matter having been raised by the defence, it was open to the Crown to establish, as it did in re-examination of Sen. Cons. Bell, that it was only after the explosion of the DOCS' office that the appellant became a State police informant. It was in that context that Detective Johnston gave the evidence objected to. 45 The evidence was not objected to by defence counsel who pursued the matter further by cross-examining on it. There was at no stage any request of the trial judge to take the evidence from the jury nor to discharge the jury, nor were any judicial directions sought in relation to it. Moreover, the Crown did not take the matter beyond the quality of the information, evidence as to character was not led, and the evidence in no way related to any alleged tendency on the part of the appellant to cause explosions. 46 As conceded by the appellant's counsel in his Written Submissions, there could have been tactical reasons for defence counsel at trial not to object to the evidence, and indeed to raise the issue of the appellant being a police informant in the first place, and to cross-examine Det Johnston in relation to it. No objection was taken and accordingly Rule 4 applies, and as the point is without substance, I would not grant leave to raise it. 47 Furthermore, the evidence may not have been without some significance. It was only after the explosion that the appellant offered himself as an informant to the State Police, but he was discharged as such informer in July 1998. That could explain why he went to the Federal Police when he wanted to ask for immunity from prosecution for this explosion; it could be expected that the State Police would not listen to him, so it could put his request for immunity into context and explain why he went to the Federal rather than the State police with such a request. 48 Ground 4 (added at the hearing) His Honour was in error in not excluding the evidence of the results of the search warrant executed at the appellant's premises. 49 It was submitted that there was an error in the application for the search warrant which stated that the applicant had purchased explosives in November 1995, whereas in November 1995 he had only been issued with a licence to purchase explosives, although there was evidence that he had later actually purchased such explosives; furthermore, the appellant was not present during the whole of the search of the premises, particularly the search of the shed where some of the explosives were located; and thirdly, that no video was taken of the search, but only still photos, and such photos of the bedroom where there was a toolbox containing explosives were taken after the original police had moved things around. It was submitted that for the police officer to juxtapose the Redcord and the detonators damaged the appellant's case because he had been keeping them in separate places for safety purposes. 50 It was not suggested that the appellant did not have the relevant explosive materials at his premises at the time of the search, but even if they were kept in separate locations, it was open to him to join them together to create the explosion. The evidence was not objected to at the trial and Rule 4 applies. In the circumstances I would not give leave to argue the point. 51 For these reasons I would dismiss the appeal and confirm the convictions. 52 Application for Leave to Appeal Against Sentence The appellant also seeks leave to appeal against the severity of the concurrent sentences imposed on him, on the following grounds: (a) The penalty is too close to the statutory maximum given the slight criminal antecedents of the appellant; (b) The penalty did not sufficiently reflect the subjective circumstances of the appellant; (c) The sentencing judge took into account matters extraneous to the counts in the indictment in considering the risk of injury to persons. 53 To deal with the last point first. In sentencing the applicant, his Honour took into account the potential risk of physical injury to other persons, particularly the next door neighbour, Mrs Young, an elderly lady who was, as it happens, looking out of her window trying to ascertain the origin of the sizzling sound she heard just before the explosion, and other persons who may have been walking past in the street following the closure of the nearby RSL Club sometime earlier. It was submitted that by having regard to these matters the sentencing judge acted contrary to the principles laid down in The Queen v De Simoni (1981) 147 CLR 383 to the effect that a judge cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 54 The appellant's difficulty however is that the circumstances of aggravation, which his Honour took into account, namely the potential physical injury to other persons, would not have in the present case warranted a conviction for a more serious offence. 55 Counsel for the appellant referred us to ss 46, 47 and 48 of the Crimes Act but those sections either require actual injury (s 46) or intent to injure (ss 47 and 48) and his Honour did not sentence on the basis of any actual injury or intent to injure other persons; accordingly he was not taking into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 56 Furthermore, our attention was drawn to the second reading speech of the then Attorney General when introducing the Crimes (Criminal Destruction and Damage) Amendment Act 1997, which enacted s 195(b) in its present form. The Attorney said: " A maximum penalty of 10 years imprisonment is provided as the potential harm is increased by the use of fire or explosion. For this offence it is not necessary that there be an intent to defraud or injure as is the present requirement for certain arson offences. It is sufficient that damage was caused by the use of fire or explosives." Hansard , Legislative Assembly, 28 October 1987 at 15,344-5 . 57 The use of the words "potential harm" as opposed to "damage" strongly suggests that the Attorney was referring to potential risk to other persons. The local RSL Club, which closed at 1am, was only a block away, and there were people moving around in the area. 58 The offence carries a maximum penalty of imprisonment for 10 years. As both offences arose out of the one explosion his Honour quite properly made the sentences wholly concurrent, and fixed the penalty at 80% of the maximum. It was submitted that this was too high for a first offender or for an offence which was not the worst type of that offence. However, the offences were serious, it is an abhorrent crime, bordering on terrorism and as his Honour said, it was totally unacceptable and antisocial, involving as it did not only the destruction of the building and the potential risk of physical injury to other persons, but substantial damage and inconvenience to the officers of a government department rendering it less able to deal with other clients who may be seeking its assistance. 59 In addition, consistently with the appellant's pleas of not guilty, there was an absence of any contrition and there was no evidence of a psychiatric condition. The serious offence called for severe punishment to demonstrate the community's condemnation of the conduct, as well as retribution and general deterrence. 60 True it is that the appellant had been under a lot of pressure, which his Honour acknowledged, by the death of his wife, the disintegration of his family, the particular problems with his youngest son, and the difficulties and frustration which he encountered in seeking help from the department which he felt should have been able to assist him. He was aged 48 years and had led a generally law abiding life with only one previous conviction for assault in 1992 for which he had been placed on a recognisance. 61 Having regard to all these factors, I am not persuaded that the sentence of 8 years is excessive, but having regard to his age, that this is his first time in prison, that he is unlikely to offend again in this manner and the other subjective features, I am satisfied that the non-parole period is excessive and his Honour should have found that these matters together constituted special circumstances. 62 Since the hearing of this appeal we have, with the consent of the Crown, received further affidavit evidence to the effect that the appellant is since 12 May 2002 serving his sentence on protection together with a submission asking the Court to take into account the harsher nature of imprisonment on protection. 63 I have considered this additional material, but having regard to the objective gravity of the offences, I do not consider that either the head sentence or the non-parole period should be reduced below what I am about to indicate. 64 I therefore propose the following orders:- 1. Appeal against convictions dismissed, convictions affirmed. 2. Grant leave to appeal against sentence. 3. Allow the appeal. 4. Confirm the head sentences. 5. Quash the non-parole period and in lieu thereof fix a non-parole period of 5 years to date from 4 December 2000 and to expire 3 December 2005. **********

R v Glover

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Judgment (8 paragraphs)

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